The law that Obama violated in releasing 5 terrorists from Gitmo in exchange for Bowe Bergdahl

Note: This post has been significantly revised and updated on June 9, 2014.

On Jan. 15, 2014, Obama told Senate Democrats that when Congress stands in his way, “I’ll act with or without Congress.” (AP)

On June 30, 2009, U.S. Army Pfc. Bowe Bergdahl of the 1st Battalion of the 501st Parachute Infantry Regiment, went missing from a remote military outpost in Paktika Province on Afghanistan’s border with Pakistan.

He was captured by the Taliban and imprisoned for 5 years — the only U.S. prisoner of war in the Afghan war.

On May 31, 2014, without consulting Congress as required by federal law, in exchange for Bergdahl, the Obama administration released five prisoners from the U.S. detention camp for terrorists in Guantanamo Bay, Cuba.

The five men were the most senior Afghans held at Gitmo: Mohammad Fazl, Khairullah Khairkhwa, Mullah Norullah Noori, Mohammed Nabi, and Abdul Haq Wasiq. They were released to Qatar, where they received a hero’s welcome from the Taliban.

House Armed Services Committee chairman Rep. Buck McKeon of California and Senate Armed Services Committee ranking member Sen. Jim Inhofe of Oklahoma said Obama had “clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantanamo Bay, and to explain how the threat posed by such terrorists has been substantially mitigated.” (Source: Daily Mail)

CNN legal analyst Jeffrey Toobin also said Obama “clearly broke the law. The law says 30-days’ notice. He didn’t give 30-days’ notice.” Obama’s opinion expressed in a signing statement “is not law. The law is on the books, and he didn’t follow it.” (Source: Mediaite)

So which federal law had Obama violated?

Writing in The Washington Times, Florida International University constitutional law professor Elizabeth Price Foley claims that the law is Section 1028 of the 2013 National Defense Authorization Act (NDAA), which prohibits any funds to be used “to transfer any individual detained at Guantanamo to the custody or control of any other foreign country” unless the secretary of defense certifies to Congress, “not later than 30 days before the transfer.” Sec. 1028 also states that the receiving country will detain the individual appropriately and “has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or re-engage in any terrorist activity.”

But Professor Foley is mistaken. Thanks to alert CODA reader Rich Fueyo, the law in question is actually Section 1035 of the 2014 National Defense Authorization Act (NDAA) or H.R. 3304 (read it in PDF here), which was signed into law by Obama on Dec. 26, 2013.

Specifically, Obama’s prisoner swap violated the following:

1. 2014 NDAA, Sec. 1035(a)(1): “The Secretary of Defense is authorized to transfer or release any individual detained at Guantanamo…if the Secretary determines…the individual is no longer a threat to the national security of the United States.”

But Defense Secretary Chuck Hagel did not determine that Mohammad Fazl, Khairullah Khairkhwa, Mullah Norullah Noori, Mohammed Nabi, and Abdul Haq Wasiq are “no longer a threat to the national security of the United States.” In fact, Qatar is allowing the five men to freely roam about and expect to return them to Afghanistan in a month.

FOX News reports that while he was in Poland on June 3, 2014, Obama himself acknowledged there’s “absolutely” a risk that the former Guantanamo inmates will try to return to the battlefield.  On June 6, NBC reports that Noorullah Noori, one of the freed prisoners, already pledged to return and fight Americans in Afghanistan.

2. Sec. 1035(b)(1): “Except as provided in subsection (a), the Secretary of Defense may transfer an individual detained at Guantanamo to the custody or control of the individual’s country of origin, or any other foreign country, only if the Secretary determines that actions that have been or are planned to be taken will substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other hostile activity that threatens the United States or United States persons or interests; and (2) the transfer is in the national security interest of the United States.”

But the American people are not told how the release of the five terrorists “is in the national security interest of the United States.” Instead, Hagel said the prisoner exchange was negotiated for humanitarian reasons, “essentially to save his [Bergdahl’s] life.”

3. Sec. 1035(c)(2) states: “the Secretary of Defense shall specifically evaluate and take into consideration the following factors…The security situation in the foreign country to which the individual is to be transferred, including whether or not the country is a state sponsor of terrorism….”

But on March 4, 2014, Treasury undersecretary David Cohen cited Qatar while speaking about state sponsors of terrorism during remarks to the Center for a New American Security. Cohen said, “Iran is not the only state that provides financial support for terrorist organizations. Most notably, Qatar, a longtime U.S. ally, has for many years openly financed Hamas, a group that continues to undermine regional stability. Press reports indicate that the Qatari government is also supporting extremist groups operating in Syria.”

4. Sec. 1035(d): “The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection.”

Hagel did not comply with the 30 days requirement.

Professor Foley claims that the Obama administration justifies its noncompliance with the 2013 NDAA in two ways:

1. It cites Subsection (d) of Section 1028, which permits Congress to be bypassed if transfer out of Gitmo “is in the national security interests of the United States.” However, as explained above with regards to Section 1035 (b)(1) of the 2014 NDAA, the Obama administration has not articulated how, exactly, national security interests demanded the release of these five Taliban leaders.
2. The Obama administration suggests that Section 1028 is itself unconstitutional. For that matter, when Obama signed the NDAA into law, he issued a statement opposing Section 1028 because he believed it infringed on his power as commander in chief. That being said, it is not up to Obama to decide whether a law is unconstitutional. That is the purview of the Supreme Court. Nor can a President simply ignore a law because he thinks it to be unconstitutional.

The fact of the matter is that while the Constitution does give the president broad power over the military as commander in chief, that power is shared by Congress through various provisions in Article I of the U.S. Constitution, including the power to:

• “make Rules for the land and naval Forces”;
• “raise and support Armies”; and
• “define and punish Offenses against the Law of Nations.”

In 1952, in the case of Youngstown Sheet and Tube Co. v. Sawyer in which the Supreme Court ruled against President Harry Truman’s seizing of domestic steel mills for the Korean War, Justice Robert Jackson said if a president acts in defiance of Congress, his power “is at its lowest ebb” and courts must scrutinize the president’s claim of power “with caution, for what is at stake is the equilibrium established by our constitutional system.”

In the case of the Bergdahl prisoner exchange, what has inflamed public opinion goes beyond Obama’s violation of federal law to include:

1. Bowe Bergdahl’s character:

• He was a deserter: The soldiers who had served with Bergdahl say so, as reported by CNN. He had left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life, as reported by the New York Times. An official Pentagon report concluded in 2010 that Bergdahl was a deserter, as reported by the Daily Mail.
• The Taliban claimed in 2010 that Bergdahl had converted to Islam and was teaching bomb-making to its jihadists. (Source: Jihad Watch)
• Bergdahl was anti-American and had complained about fellow soldiers, as reported for the Rolling Stone by the late Michael Hastings who died in a suspicious single-car accident on June 18, 2013.
• According to Fox News (via The Blaze), Bergdahl had written a note expressing a desire to renounce his American citizenship.

2. Bowe Bergdahl’s father, Robert, in a White House appearance with Obama at his side, praised Allah and Islam in Arabic: “Bismillah ir-Rahman ir-Rahim (In the name of Allah, most Gracious, most Compassionate).”

3. At least 7 U.S. soldiers were killed while looking for Bowe Bergdahl (source:  The Daily Beast):

1. Pfc Aaron Fairbairn
2. Pfc Justin Casillas
3. Pfc Morris Walker
4. Staff Sergeant Clayton Bowen
5. Staff Sergeant Kurt Curtiss
6. Second Lieutenant Darryn Andrews
7. Staff Sergeant Michael Murphrey

~StMA